Opinion
4 Div. 446.
November 27, 1928.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
J. C. Fleming, of Elba, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Distilling.
The evidence adduced upon this trial in the court below, as shown by the record, has been read and considered by this court en banc. The affirmative charge was requested in writing and refused. This court is of the opinion that there was error in the refusal of said charge, as the evidence as a whole was insufficient to sustain the burden of proof resting upon the state and to overcome the presumption of innocence which attended the accused. We are of the opinion, so far as the charges contained in the indictment are concerned, that the evidence hardly creates even a suspicion against this appellant. A conviction cannot be permitted to stand upon such evidence.
Reversed and remanded.